Patrick J. Fisher, Jr.

Clerk

UNITED STATES COURT OF APPEALS

Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157

Elisabeth A. Shumaker
Chief Deputy Clerk

July 7, 1999
TO:

ALL RECIPIENTS OF THE OPINION

RE:

98-3049, In re Anderson
Filed on June 7, 1999

The slip opinion filed in this appeal contains a typographical error on page 6, footnote
two. The footnote should read:
This amount reflects principal and interest.
Please make the correction to your copy of the opinion.
Sincerely,
Patrick Fisher, Clerk of Court
By:

Keith Nelson
Deputy Clerk

F I L E D

F I L E D

United States Court of Appeals

Tenth Circuit

JUN 7 1999

PUBLISH
UNITED STATES COURT OF APPEALS

PATRICK FISHER

TENTH CIRCUIT
In re: DOREEN ANN ANDERSEN,
Debtor.
DOREEN ANN ANDERSEN,
Plaintiff - Counter-Defendant Appellee.
v.
UNIPAC-NEBHELP,
Defendant,
and
EDUCATIONAL CREDIT
MANAGEMENT CORPORATION,
successor to Transitional Guaranty Agency
and successor in interest to Higher
Education Assistance Foundation,
Defendant - Counter-Claimant Appellant,
UNITED STUDENT AID FUNDS, INC.,
Amicus Curiae.

No. 98-3049

Clerk

APPEAL FROM THE UNITED STATES

BANKRUPTCY APPELLATE PANEL
(B.A.P. No. 97-059)
N. Larry Bork, Goodell, Straton, Edmonds & Palmer, Topeka, Kansas, (Jodean A.
Thronson, Staff Attorney, Educational Credit Management Corporation, St. Paul,
Minnesota, with him on the brief), for Defendant - Counter-Claimant - Appellant.
Donald B. Clark, Wichita, Kansas, for Plaintiff - Counter-Defendant - Appellee.
Mac D. Finlayson, Flowers and Finlayson, P.C., Tulsa, Oklahoma, filed an amicus brief
for United Student Aid Funds, Inc.
Before ANDERSON and McWILLIAMS, Circuit Judges, and COOK, District Judge.*
COOK, District Judge.

Defendant-Appellant Educational Credit Management Corporation brings this

appeal from a final order of the Tenth Circuit Bankruptcy Appellate Panel, reversing the
judgment of the United States Bankruptcy Court for the District of Kansas. We have
jurisdiction by virtue of 28 U.S.C. 158(d), and we affirm.
I. Background
The parties have stipulated to the relevant and material facts. On December 27,
1990, the debtor herein, Doreen Andersen, filed for bankruptcy under chapter 13. At the
The Honorable H. Dale Cook, Senior United States District Judge for the Northern
District of Oklahoma, sitting by designation.
*

time that the petition was filed, Andersen had outstanding student loan obligations, and
the underlying promissory notes were held by various institutions. The claims of Higher
Education Assistance Foundation (HEAF) and UNIPAC-NEBHELP represented the
balance due on four student loan promissory notes executed by Andersen.1 HEAF was
the guaranty agency for the promissory notes, and UNIPAC-NEBHELP was the lending
bank. Subsequent to Andersen filing her petition in bankruptcy, HEAF filed three proofs
of claim for the balance due on the four notes.
Andersen filed a chapter 13 plan containing the following language:
All timely filed and allowed unsecured claims, including the claims of
Higher Education Assistance Foundation and UNIPAC-NEBHELP, which
are government guaranteed education loans, shall be paid ten percent (10%)
of each claim, and the balance of each claim shall be discharged. Pursuant
to 11 U.S.C. 523(a)(8), excepting the aforementioned education loans
from discharge will impose an undue hardship on the debtor and the debtors
dependents. Confirmation of debtors plan shall constitute a finding to that
effect and that said debt is dischargeable.
HEAF filed an untimely objection to the plan, which was denied for that reason. The
plan, which included the above language, was subsequently confirmed. HEAF did not
appeal the order of confirmation.
HEAF ceased operations on December 31, 1993, during the course of Andersens
bankruptcy, and transferred the majority of its bankruptcy loan portfolio, including
Andersens promissory notes, to the United States Department of Education. Also during
The promissory notes are dated October 20, 1987, August 27, 1987, August 7,
1988, and August 8, 1988.
1

the course of Andersens bankruptcy, in May 1994, the Department of Education

transferred title of these promissory notes to Educational Credit Management Corporation
(ECMC), which operates as a non-profit educational loan guaranty agency under the
Federal Family Education Loan Program (FFELP).
Andersen completed all payments under the confirmed plan and was granted a
discharge on December 22, 1994. ECMC reviewed Andersens account during the course
of processing the discharge and determined that the second and third promissory notes
had not reached default status before Andersen filed for bankruptcy. Pursuant to the
FFELP, ECMC initiated repurchase proceedings for the second and third notes with
UNIPAC-NEBHELP, and the repurchase was completed on March 10, 1995. UNIPACNEBHELP took title to the second and third notes, and ECMC remained the guarantor of
the repurchased notes.
Because Andersen had defaulted on the first and fourth notes prior to filing for
bankruptcy, ECMC initiated collection proceedings on those notes, and on January 9,
1995, ECMC sent Andersen a letter requesting payment of the first and fourth notes.
Andersens counsel responded with a letter directed to ECMC on January 30 stating that
the debt had been discharged. ECMC promptly replied and expressed its position that the
debt was not discharged. ECMC continued collection activity, requesting payment on
July 20, August 3, and August 10, 1995.

Andersen reopened her bankruptcy case on September 25, 1995, for the purpose of
filing a complaint to determine the dischargeability of the debt which ECMC was
attempting to collect. At that point, ECMC ceased collection activity. However, the
reopening of the case constituted a basis for UNIPAC-NEBHELP to file a claim for
payment of the second and third notes. ECMC paid UNIPAC-NEBHELPs claim on
March 15, 1996, and title to the second and third notes was transferred back to ECMC.
Upon outlining these stipulated facts, the United States Bankruptcy Court for the
District of Kansas stated the issue as follows: whether a debtor may, by including
language in a plan, discharge an otherwise nondischargeable debt in Chapter 13. The
court noted that the real issue is whether the plan provisions here constitute a binding
adjudication of hardship. Reasoning that a judicial determination of undue hardship
required Andersen to bring an adversary proceeding, wherein she would have had the
burden of proof on the issue, the court held that, Including language in a proposed
Chapter 13 plan, which provides that student loans are discharged after completion of
plan payments and that confirmation of the plan constitutes a finding of undue hardship,
is not sufficient to overcome the presumption of nondischargeability of student loan
debts. Responding to Andersens argument that the confirmed plan nevertheless
constituted res judicata on the issue of the dischargeability of the student loans, the court
said that,
Language in a plan does not constitute a judicial determination of hardship.
HEAF and the other creditors were entitled to a higher level of due process
5

before the confirmation of the plan invokes the concept of res judicata.
Congress clear intent to except student loans from discharge cannot be
overcome simply by inserting language into a proposed plan providing that
confirmation of the plan constitutes a finding of undue hardship.
The court concluded that, because Andersen did not formally seek a determination of
dischargeability, her student loans, in the amount of $15,085.42,2 were not discharged
under the confirmed plan.
Andersen appealed the decision to the Tenth Circuit Bankruptcy Appellate Panel
(BAP). In re Andersen, 215 B.R. 792 (10th Cir. BAP 1998). Citing the fact that the issue
herein arose after confirmation of the plan and after entry of the order of discharge, id. at
794, the BAP held that confirmation of the plan constituted a finding of undue hardship,
rendering the student loans dischargeable. Id. at 796. The BAP thus reversed the ruling
of the lower court, concluding that the ultimate order of discharge properly discharged
the balance of the student loan obligation. Id. This appeal followed.
II. Discussion
The relevant facts are stipulated, and we review de novo the BAPs conclusions of
law. Woodcock v. Chemical Bank, 45 F.3d 363, 367 (10th Cir. 1995). The Bankruptcy
Code generally provides that a discharge does not discharge a debtor from a debt arising
from an educational loan unless excepting such debt from discharge will impose an undue

This amount reflects principal and interest.

6

hardship on the debtor and the debtors dependents.3 11 U.S.C. 523(a)(8).4 This
general exception to the discharge of educational loans is applicable to the present chapter
13 case by virtue of 11 U.S.C. 1328(a)(2).5 Based on these provisions, ECMC argues
that the determination of undue hardship is self-executing and requires a formal adversary
proceeding, apart from the plan process. As we note above, the Bankruptcy Court agreed
with ECMCs position and held that Andersens student loans were not discharged,
despite the confirmed plans contrary language. ECMC further argues that the BAP erred

Prior to October 1998, 523(a)(8) provided that educational loans were not
dischargeable unless, (A) the loan first became due more than seven years before the date
of the filing of the petition (the seven-year rule), or (B) excepting the debt from
discharge would impose an undue hardship. However, The Higher Education
Amendments of 1998, Pub. L. No. 105-244, 971, 112 Stat. 1581, 1837 (1998),
eliminated 523(a)(8)s seven-year rule in all cases filed after October 7, 1998, leaving
only the undue hardship exception to non-dischargeability. While this amendment does
not affect the present case, it does tend to support the argument that Congress has sought
to progressively restrict the cases in which educational debts will be discharged.
3

Section 523(a)(8) provides that,

A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this
title does not discharge an individual debtor from any debt . . . for an
educational benefit overpayment or loan made, insured or guaranteed by a
governmental unit, or made under any program funded in whole or in part
by a governmental unit or nonprofit institution, or for an obligation to repay
funds received as an educational benefit, scholarship or stipend, unless
excepting such debt from discharge under this paragraph will impose an
undue hardship on the debtor and the debtors dependents.

Section 1328(a)(2) provides, in relevant part, that, As soon as practicable after

completion by the debtor of all payments under the plan, . . . the court shall grant the
debtor a discharge of all debts provided for by the plan . . ., except any debt . . . of the
kind specified in [ 523(a)(8)].
5

in reversing the judgment of the lower court and shifting the burden of proving a lack of
undue hardship to the creditor. While we agree with certain propositions advanced by
ECMC, we disagree with the conclusion which ECMC seeks to draw from those
propositions in this case.
We note at the outset that ECMC is correct in stating that the [d]ebtor bears the
burden of demonstrating undue hardship with respect to the dischargeability of
educational loans. Woodcock, 45 F.3d at 367. And, we may assume that the Bankruptcy
Court correctly held that a debtor must normally prove undue hardship by bringing an
adversary proceeding directed to that issue. See Buford v. Higher Education Assistance
Foundation, 85 B.R. 579, 581-82 (D.Kan. 1988); Bankruptcy Rule 7001. However, these
statements do not resolve the present issue before us. The real issue here is not whether
Andersen properly met her burden of proving an undue hardship, which she clearly did
not, but whether confirmation of the plan constitutes a binding adjudication of hardship.
In the present case, Andersen placed language in her proposed plan that, if
confirmed, would clearly have a negative impact on the claims of HEAF and UNIPACNEBHELP. As discussed above, the plan provided that these claims shall be paid ten
percent, and the balance of each claim shall be discharged. Recognizing the requirement
that such claims may only be discharged upon a finding of undue hardship, Andersen
further provided in her plan that excepting such loans from discharge will impose an

undue hardship, that confirmation of the plan shall constitute a finding to that effect, and
that the debt is dischargeable.
Despite the inclusion of this adverse provision in the proposed plan, HEAF failed
to file a proper objection.6 The objection that was ultimately filed by HEAF was denied
as untimely, see State Bank of India v. Chalasani, 92 F.3d 1300, 1310 (2nd Cir. 1996)
(Even though deadlines may lead to harsh results in particular cases, their observance by
the bankruptcy bar and their enforcement by courts lead to the salutary result of bringing
finality to bankruptcy proceedings), and the plan, containing the language at issue, was
subsequently confirmed. Remarkably, HEAF then compounded its error by failing to
contest the issue after confirmation or appeal the order confirming the plan. See In re
Wade, 991 F.2d 402, 406 (7th Cir. 1992) (confirmation of a bankruptcy plan is a final,
appealable order).7 Indeed, these claims were only pursued by the successor guaranty

As the BAP noted, there is no allegation that HEAF did not receive notice of the
plan, or that HEAF lacked the opportunity to object. Andersen, 215 B.R. at 795. HEAF
did respond and filed an objection, thereby indicating that HEAF understood that the plan
intended to grant relief affecting HEAFs interests. Id. Thus, we do not perceive a due
process issue here. Rather, we agree with the BAP that, given the fact that HEAF does
not complain that it lacked adequate notice of Andersens plan prior to confirmation, it
appears that due process has been accorded. Id.
6

Bankruptcy Rule 8001(a) provides that, An appeal from a judgment, order, or

decree of a bankruptcy judge to a district court or bankruptcy appellate panel . . . shall be
taken by filing a notice of appeal . . . within the time allowed by Rule 8002. Rule
8002(a), in turn, provides, The notice of appeal shall be filed . . . within 10 days of the
date of the entry of the judgment, order, or decree appealed from.
7

agency after the plan was confirmed, all payments under the plan had been made, and an
order of discharge had been entered.
Clearly, then, HEAF failed to take an active role in protecting its claims. While a
debtor unquestionably has the burden or proving undue hardship in order to obtain a
discharge of her student loan, a student loan creditor, like every other creditor, has a duty
to ensure that its interests are adequately protected. A creditor cannot simply sit on its
rights and expect that the bankruptcy court or trustee will assume the duty of protecting
its interests. See American Bank and Trust Co. v. Jardine Insurance Services Texas, Inc.,
104 F.3d 1241, 1246 (10th Cir. 1997) (creditors are obligated to take an active role in
protecting their claims); In re Szostek, 886 F.2d 1405, 1414 (3rd Cir. 1989) (same). We
do not believe that ECMC can now excuse HEAFs failure to protect its interests by
arguing that Andersen failed to prove undue hardship in an adversary proceeding. This
argument should have been raised in a timely filed objection to the plan prior to
confirmation, or argued subsequently in a timely filed appeal attacking the confirmed
plan. Neither was done here.
The essence of ECMCs argument is that, despite the repeated failures of HEAF to
protect its interests, the Bankruptcy Court exceeded its authority in confirming a plan that
contained provisions which were contrary to the Code. That is, ECMC contends that,
although no timely objection to the plan was filed and no appeal was taken following
confirmation, Andersen had the burden of initiating an adversary proceeding in order to
10

prove the otherwise uncontested fact of undue hardship. Without a judicial finding of
such hardship at the close of an adversary proceeding, ECMC contends that the student
loans cannot be discharged. We disagree. While Andersen surely had the burden of
proving undue hardship, and while a discharge granted without such proof is inconsistent
with the Code,8 it is critical that HEAF, as the party affected by this determination, failed
to properly challenge the language at issue, the interim rulings of the bankruptcy court, or
the confirmed plan. As we discussed above, it is absolutely incumbent upon a creditor to
take an active role in protecting its interests, and a creditor which fails to do so is in a
poor position to later complain about an adverse result. We echo the wisdom of the Third
Circuit that, [w]hile we do not understate the importance of the obligation of the
bankruptcy court or the trustee to determine that a plan complies with the appropriate
sections of the Bankruptcy Code prior to confirmation of the plan, we nonetheless
recognize that the affirmative obligation to object to the . . . plan rested with [HEAF], not
with the bankruptcy court or the trustee. In re Szostek, 886 F.2d at 1414.
ECMC further argues that the result of the BAP decision effectively shifts the
burden of proof to the student loan creditor. We disagree. At no time does the creditor
have the burden of showing a lack of undue hardship. At most, the BAP decision merely
recognizes the need for a creditor to protect its interests by timely objecting to a proposed
For the reasons stated below, a confirmed plan, or any provision thereof, is not
rendered void merely because a certain provision of the plan may be inconsistent with, or
even contrary to, the Code.
8

11

plan or appealing the confirmation order. If a creditor fails to do so, it cannot later
complain about a certain provision contained in a confirmed plan, even if such a
provision is inconsistent with the Code. See Lawrence Tractor Co. v. Gregory, 705 F.2d
1118, 1121 (9th Cir. 1983) (creditors failure to raise objection at confirmation hearing or
to appeal from order of confirmation should preclude its attack on the plan or any
provision therein as illegal in a subsequent proceeding); Great Lakes Higher Education
Corp. v. Pardee, 218 B.R. 916, 922 (9th Cir. BAP 1998) (when chapter 13 plan contains a
provision that is contrary to the Code, student loan creditor with notice of the provision
must object to the plan or appeal the confirmation order, and the failure to do so
constitutes a waiver of its right to collaterally attack the confirmed plan after
confirmation).
Aside from HEAFs failure to protect itself during the bankruptcy proceedings, the
strong policy of finality also justifies the result reached by the BAP. We may assume that
student loan debts are presumptively nondischargeable and that the debtor is under an
obligation to prove undue hardship by bringing an adversary proceeding. While
Andersen did not properly prove undue hardship pursuant to the requirements of the
Code, we agree with the Third Circuit that, after the plan is confirmed the policy
favoring the finality of confirmation is stronger than the bankruptcy courts and the
trustees obligations to verify a plans compliance with the Code. In re Szostek, 886
F.2d at 1406. As the court recognized in In re Mammel, 221 B.R. 238, 240 (Bankr.N.D.
12

Iowa 1998), [r]eviewing courts have been troubled by the tension created by inclusion of
arguably inappropriate plan provisions and the need for finality in confirmed plan. . . .
Most courts ultimately defer to the doctrine of res judicata because of the compelling
need for finality in confirmed plans. They, therefore, enforce offending plan provisions
even though acknowledging that a provision may be contrary to the Code. This is the
majority view. See also DiBerto v. Meadows at Madbury, Inc., 171 B.R. 461, 472
(Bankr.D.N.H. 1994) (application of res judicata to confirmation order supports strong
policy of finality in the reorganization process); In re Battle, 164 B.R. 394, 397
(Bankr.M.D.Ga. 1994) (absent timely appeal, confirmed plan is res judicata, and it is
incumbent upon creditors to review the plan and object if they believe it to be improper;
the binding effect of the plan extends to any issue actually litigated and any issue
necessarily determined by the confirmation order, including whether the plan complies
with the Code); United States v. Smith, 142 B.R. 862, 864-65 (Bankr.E.D.Ark. 1992)
(unappealed order confirming chapter 13 plan gives res judicata effect to all issues
pertaining to the plan that were raised or could have been raised at confirmation, even if
order is erroneous).
Moreover, we have recently said that, [u]pon becoming final, the order
confirming a chapter 13 plan represents a binding determination of the rights and
liabilities of the parties as ordained by the plan. Absent timely appeal, the confirmed plan

13

is res judicata and its terms are not subject to collateral attack.9 United States v.
Richman, 124 F.3d 1201, 1209 (10th Cir. 1997) (citations and quotations omitted). We
therefore agree with the BAP that the order of confirmation is res judicata as to the issue
of hardship.10 Andersen, 215 B.R. at 795. Although the provision at issue did not comply
with the Code, it is now too late for ECMC to make the argument that HEAF failed to
timely raise.11 See Pardee, 218 B.R. at 926 (while the plan should not have been
confirmed with the discharge provision, once confirmed, the plan was binding on the

The amicus curae argues that we are not faced with a collateral attack on the
confirmation order, but a direct attack on the confirmation order entered in a fashion
which exceeds the bankruptcy courts authority. We disagree. HEAF failed to appeal
the confirmation order within the time limits of Bankruptcy Rules 8001 and 8002. Hence,
ECMCs present attack is a collateral attack on the confirmation order. See Pardee, 218
B.R. at 926 (because a confirmed plan binds the creditors and debtor under 1327(a), a
creditor cannot, after the order of confirmation is final and after the debtor fully
performed on the Plan, collaterally attack the confirmation order by seeking to collect in
direct violation of the terms of the Plan).
9

Section 1327(a) of the Code provides that the provisions of a confirmed plan bind
the debtor and each creditor, whether or not the claim of such creditor is provided for by
the plan, and whether or not such creditor has objected to, has accepted, or has rejected
the plan. ECMC contends that this provision only binds the creditor for the duration of
the plan, arguing that a nondischargeable debt is not governed by 1327 after discharge
in bankruptcy. We disagree with ECMCs position here. The res judicata effect of
confirmation may be eliminated only if confirmation is revoked, or if the case is later
dismissed or converted to another chapter. 5 Collier on Bankruptcy 1327.01[1] (15th
ed. 1996). As we explain below, this is not a case in which a debt that was
nondischargeable throughout the course of bankruptcy suddenly became dischargeable at
the conclusion of the proceedings. Rather, the debt became dischargeable at the point of
confirmation.
10

As the BAP said, [h]ad HEAF timely objected, the issue now before the Court
could have been dealt with and determined. Andersen, 215 B.R. at 795.
11

14

parties under 1327(a) and the well-established principle that a party that fails to appeal a
final order cannot collaterally attack the order). This is especially true where, as here, the
plan has been confirmed, no appeal challenging the confirmation order was brought, all
payments under the plan have been made, and the order of discharge has been entered.
The purpose of section 1327(a) is the same as the purpose served by the general doctrine
of res judicata. There must be finality to a confirmation order so that all parties may rely
upon it without concern that actions which they may thereafter take could be upset
because of a later change or revocation of the order. 5 Collier on Bankruptcy
1327.01[1] (15th ed. 1996).
By the time ECMC began its collection efforts on the student loan obligation after
Andersen emerged from bankruptcy, she certainly possessed a reasonable expectation that
her student loans had been discharged as provided for in the plan; HEAF had previously
failed to properly challenge the plan at any time, either by objection or appeal, Andersen
had completed her payments under the plan, and she ultimately received an order of
discharge. To permit ECMC to prevail at this late stage, subsequent to the order of
discharge and several years after the plan was confirmed, would not only diminish the
reliability and finality of the confirmed plan, but would surely disrupt Andersens
reasonable and settled expectations regarding her future financial planning. Accordingly,
in light of HEAFs repeated failure to timely and properly challenge Andersens plan
during the course of the bankruptcy proceedings, along with the res judicata effect of the
15

confirmed plan and strong policy favoring finality, we hold that the balance of
Andersens student loan debt is discharged pursuant to the confirmed plan and the order
of discharge.
ECMC argues that this result effectively turns an expressly nondischargeable debt
into a dischargeable debt. For this proposition, ECMC cites and relies upon our decisions
in DePaolo v. United States, 45 F.3d 373 (10th Cir. 1995), and Grynberg v. United States,
986 F.2d 367 (10th Cir. 1993). Both cases involved a nondischargeable tax debt, and we
held that, because the debts of the Internal Revenue Service (IRS) are nondischargeable, a
confirmed plan does not bar the IRS from assessing and collecting taxes. DePaolo, 45
F.3d at 376. We agree with the BAP that ECMCs reliance on these cases is misplaced.
This case does not represent an attempt to transform a debt which remained
nondischargeable throughout the plan period into a dischargeable debt at the conclusion
of the period. Rather, unlike the tax cases, the finding of undue hardship in the confirmed
plan changed the nature of the debt into a dischargeable debt. As the BAP said, [t]he
plan . . . resolved a potential controversy about whether payment of the student loan
would result in an undue hardship to the debtor. Confirmation of the plan constituted a
finding to that effect, thereby rendering the loan dischargeable. Andersen, 215 B.R. at
796.

16

We understand that Congress has sought to progressively limit the instances in

which student loan debts may be discharged in bankruptcy,12 and this intent is most
recently seen in the 1998 amendments which eliminated the seven-year rule of
dischargeability of educational loans. Higher Education Amendments of 1998, Pub. L.
No. 105-244, 971, 112 Stat. 1581, 1837 (1998). Recognizing Congress clear desire to
restrict dischargeability in this area, we emphasize that our holding does not in any
manner lessen a debtors burden of proof on the issue of undue hardship when seeking to
discharge an educational loan, nor do we suggest that this is an easy burden to overcome.
Rather, under the particular facts of this case, we merely conclude that the strong policy
favoring finality, coupled with the creditors complete failure to properly protect its
interests during the course of the bankruptcy proceedings, permit us to affirm the BAPs
decision.13
Accordingly, the judgment of the BAP is AFFIRMED.

As the Bankruptcy Court noted, prior to 1990, student loan obligations were
dischargeable in chapter 13 after completion of plan payments. In 1990, Congress
amended 1328(a)(2), adding 523(a)(8) as an exception to discharge. Student Loan
Default Prevention Initiative Act of 1990, Pub. L. 101-508, 3001, 3007, 104 Stat.
1388, 1388-25, 1388-28 (1990).
12

Andersen requests an award of attorney fees and costs, pursuant to 11 U.S.C.

524. The issue was not considered by either court below, and we decline to consider it
at this time.
13

17